Re: U.S. Department of Labor modifies Families First Coronavirus Response Act Leave Rules and limits prior scope of health care worker exception

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Thompson Coburn LLP

On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division announced revisions to its regulations implementing the Families First Coronavirus Response Act (FFCRA) to address a ruling by the U.S. District Court for the Southern District of New York’s August 3, 2020 decision which invalidated portions of the relevant regulations.

The new rule produced the following changes/clarifications with the respect to the FFCRA:

  1. In a major change, the DOL modified the definition of “healthcare provider” who are not eligible for FFCRA leave to employees who meet the definition of that term under the Family and Medical Leave Act (FMLA) regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care. The prior regulation had a far more expansive definition of who was a health care provider for purposes of FFCRA leave.
  2. The DOL clarified that if the employer does not have work for the employee, an employee is not eligible for FFCRA leave for that period. The prior rule required that an employee was entitled to FFCRA leave only if the qualifying reason was a “but for” cause for the leave.  
  3. An employee must have employer approval to take intermittent FFCRA leave. Prior to the revisions, the FFCRA did not specifically address approval for intermittent leave. Now it is clear that an employee must have employer approval to take intermittent leave under the FFCRA.
  4. Employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable. The revision to § 826.100 was intended to clarify that documentation need not be given “prior to” taking paid sick leave or expanded family and medical leave, but rather may be provided as soon as practicable.
  5. Corrected an inconsistency regarding when employees may be required to provide notice to their employer of a need to take expanded family and medical leave. The prior version of § 826.90(b) stated that “notice may not be required in advance” of the leave. The DOL noted that this was correct with respect to paid sick leave, but not for expanded family and medical leave. The revision is intended to correct this inconsistency by stating that notice for all leave under the FFCRA should be given “as soon as practicable.”

Employers should be aware of these revisions and update FFCRA leave policies accordingly.

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